1. Firing an employee for filing a workers compensation claim is improper; however, an
employer is not required to look for alternative work or create a position before
terminating an injured employee who clearly cannot return to his prior position.

2. When an employee seeks to pursue a claim for failure to accommodate, the employee's
claim should be pursued under the Americans with Disabilities Act or the Kansas Acts
Against Discrimination.

While employed at Excel, Thidsorn sought treatment and compensation for
work-related
injuries. Excel's collective bargaining agreement with the union provided that an employee who
has a workers compensation injury is allowed one opportunity to bump a junior employee for
a permanent job that is within the injured employee's permanent medical restrictions. Thidsorn's
treating physician said that the job Thidsorn selected may accommodate his
permanent medical
restrictions. An Excel representative informed Thidsorn that if he were unable or refused to
perform the selected job, Excel would terminate him.

Thidsorn bumped a junior employee for a job that fit within his medical restrictions.
Approximately 1 week after starting the new job, Thidsorn began experiencing physical
problems. Thidsorn's attorney demanded that Excel provide additional accommodation or a
vocational referral. Thidsorn's physician stated that the physical requirements of Thidsorn's new
job subjected him to further injury.

Although he argues otherwise, there is uncontroverted evidence that Thidsorn admitted
telling a physician and an Excel representative that he did not feel he could continue performing
the new job. Excel terminated Thidsorn because of his inability to do the job. The trial court
granted Excel's motion for summary judgment and found that Excel was justified in terminating
Thidsorn because he could not perform the permanent post-injury position he had chosen.
Thidsorn appeals.

Firing an employee for filing a workers compensation claim is improper; however, an
employer is not required to look for alternative work or create a position before terminating an
injured employee who clearly cannot return to his prior position. Coleman v. Safeway
Stores,
Inc., 242 Kan. 804, 807, 752 P.2d 645 (1988); Murphy v. City of Topeka, 6
Kan. App. 2d 488, 495-96, 630 P.2d 186 (1981); see Griffin v. Dodge City Cooperative
Exchange, 23 Kan. App. 2d 139, 148-49, 927 P.2d 958 (1996), rev. denied
261 Kan. 1084 (1997). According to Griffin, if a duty to
accommodate is incorporated into the public policy behind retaliatory discharge, the policies
behind the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (1994),
and the Kansas Acts
Against Discrimination, K.S.A. 44-1001 et seq., would be frustrated. If an employee
seeks to
pursue a claim for failure to accommodate, he or she should pursue that claim under these laws.
23 Kan. App. 2d at 149.

The trial court relied on the Griffin rationale in granting summary judgment
because
Thidsorn's termination was based on his physical inability to perform his post-injury job duties.
According to the trial court, Excel was justified in terminating Thidsorn in accord with the
collective bargaining agreement and based on the representations of Thidsorn's physician and
attorney.

Griffin was diagnosed with degenerative disc disease and was assigned permanent medical
restrictions. Griffin filed a retaliatory discharge action because his employer did not return him
to work. He argued that his employer was estopped from asserting his inability to perform work
because the employer took a contrary position during the pendency of his workers compensation
case. This court held that an employer cannot be sued for retaliatory discharge simply because
it failed to consider another position or to modify a job to accommodate an injured employee.
23 Kan. App. 2d at 149.

Thidsorn argues that Griffin is not applicable because the issue here is not a
failure to
accommodate. Thidsorn contends that Excel fired him under the guise of the collective
bargaining agreement after he demanded an additional accommodation or a vocational referral
under K.S.A. 44-510g. He further argues that Excel's bumping process was designed to avoid
liability for work disability benefits and to systematically fire injured employees who returned
to work.

Unlike Sanjuan, Thidsorn was rated and medically released with permanent
physical
restrictions. Excel placed him in the post-injury job he selected pursuant to the procedures
outlined in their collective bargaining agreement. Thidsorn's attorney sent a letter, supported
by medical documentation, indicating that Thidsorn could no longer perform the job. When
asked about the letter, Thidsorn admitted that he could no longer perform the job, and the
collective bargaining agreement did not provide for an additional accommodation. The trial
court did not err in granting summary judgment.